Lyon v. Lyon

Opinion by

Mb. Justice McCollum,

This is a suit in which the plaintiff charges the defendant with having alienated the affections of her husband, and thus accomplished his abandonment of her. The answer of the defendant to the charge is that no word or act of his at any time, caused or contributed to the alienation complained of, and that on discovering the husband’s purpose to abandon his wife he did all in his power to prevent the execution of it. The issue thus made required the jury to determine it upon the relevant and competent testimony in the case. If error appeared in the admission of irrelevant and incompetent testimony or in the rejection of evidence which was relevant and competent it was the province and duty of the court, on application of the injured party, to correct it.

In the case in hand the defendant alleges error in the admission and rejection of testimony, in the answers to the written points he submitted to the court, and in the excerpts from the charge on which the thirteenth, fourteenth and fifteenth assignments are based. The first, third, fourth and fifth points submitted to the court by the defendant constitute the basis of the first, second, third and fourth assignments and amount to an assertion by him that there was no sufficient evidence to warrant the submission of the case to the jury. The defendant also alleges error in the affirmance by the court of the plaintiff’s second point “ as an abstract proposition of law.”

The testimony introduced by the plaintiff to substantiate her claim against the defendant was relevant to the issue involved, and, if credited by the jury, entitled her to a verdict in accordance with her contention. It follows as a logical sequence that there was no error in the refusal of the court to affirm the defendant’s points as stated. As to the plaintiff’s second point which constitutes the basis of the fifth assignment it is sufficient to say that the answer to it harmonizes with the general charge relating to punitive damages.'1 It may also be said in this connection that the reduction of the verdict in the “ opinion and decree refusing a new trial ” evinced a purpose on the part of the court to limit the verdict to compensatory damages.

The rulings complained of in the eighth, ninth, tenth and eleventh assignments may be considered together. They related to tbe rejection of offers to prove by Pauline Licbten that her brother Moyer had no affection for his wife, and to the rejection of an offer to prove by the defendant that Moyer endeavored “to become reconciled to his wife and resume marital relations.” The rejected offers referred to alleged declarations and statements of Moyer to his brother and sister respecting his wife after his abandonment of her. It is clear therefore that the declarations and statements alleged to have been made were not admissible as a part of the res gestee.

We discover no error in the rulings complained of in the twelfth assignment or in the excerpts from the charge which constitute the basis of the thirteenth, fourteenth and fifteenth assignments.

The sixth and seventh assignments relate to the exclusion of W. F. Reeder as a witness to testify to declarations and statements made by Moyer on the 29th of December, 1893, to the effect that he would never live with his wife thereafter. The alleged ground of the exclusion was that Reeder at the time the declarations or statements were made was the legal adviser of Moyer. The testimony, however, was not sufficient to support this contention. We therefore sustain the sixth and seventh assignments.

Judgment reversed and a venire facias de novo awarded.